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State Supreme Court to Hear Wrongful Death Lawsuit Against Marlboro

September 13, 2016

A Connecticut lawsuit against Marlboro that alleges the cigarette maker caused a woman's lung cancer and death will go before the state Supreme Court justices Tuesday in an effort to clarify the law under the state's Product Liability Act.

The case is being closely watched as eight groups, including Connecticut, the Connecticut Trial Lawyers Association, Connecticut Business & Industry Association and the Connecticut Defense Lawyers Association, have submitted amicus briefs both in support and in opposition of the lawsuit.

Vincent Bifolck filed the wrongful death lawsuit in federal court on behalf of his wife, Jeanette Bifolck, a 42-year-old woman who died from lung cancer he claims was caused by years of smoking Marlboro and Marlboro Light cigarettes designed and marketed by Philip Morris Inc.

Bifolck argues that Marlboro knowingly designed and manufactured the cigarettes in a way that enhanced their addictive nature and cancer-causing properties and failed to implement design changes that would make the cigarettes less addictive and toxic. He claimed the defendant was liable under the Connecticut Product Liability Act, but Philip Morris contends that the tobacco industry cannot be held liable under that statute.

To prove a claim under the statute, a plaintiff must show that a product was in a defective condition and unreasonably dangerous to the user.

The Connecticut Supreme Court uses the definition of "unreasonably dangerous" from comment (i) to Section 402A of the Restatement (Second) of Torts, an influential treatise by the American Law Institute that summarizes the general principles of U.S. tort law.

U.S. District Judge Stefan Underhill in Connecticut ruled that there was no Connecticut precedent regarding whether the Restatement's "unreasonably dangerous" requirement applies to a state product liability claim of negligent design. The judge then asked the state Supreme Court to weigh in, and it accepted. The state's highest court will address the question of whether the Restatement should apply to a product liability claim for negligence under the product liability statute.

"There is no reason to immunize manufacturers for foreseeable and preventable injuries resulting from unnecessarily unsafe designs merely because the consumer may have had reason to expect that the product posed risks—particularly when the consumer would not have had reason to understand that the product could be made safer than it was," David Golub, of Silver, Golub & Teittell in Stamford, said in court documents on behalf of Bifolck.

Golub argues that "a reasonably prudent cigarette manufacturer" would not have designed Marlboro cigarettes to make them as carcinogenic and addictive as they were.

Washington, D.C., lawyer John Massero of Arnold & Porter is lead counsel on Philip Morris' legal team. He argues that siding with the plaintiffs would "disrupt and complicate" settled law.

"The Legislature enacted the [Connecticut Product Liability Act] with the principal purpose of simplifying the state's complicated product liability law, which had caused an unfavorable climate for manufacturing and commerce," argues Massero.

The state Attorney General's Office filed an amicus brief on behalf of the state Department of Consumer Protection in support of the plaintiff's case.

"The overarching objective of Connecticut's product liability law should be to protect consumers, place the cost of injuries resulting from defective products on the manufacturers who put the products on the market and ultimately encourage innovation in the quest for enhanced product safety," wrote a team of lawyers for the attorney general. "These principles would be severely undermined if the Court were to make more difficult the pleading and proof of claims against a tobacco company."

A team of lawyers from Murtha Cullina in Hartford filed an amicus brief on behalf of the Connecticut Business & Industry Association.

"For Connecticut manufacturers to remain competitive in this increasingly global economy, it is essential that they have the freedom to develop products for broad distribution under a predictable risk-utility model that allows innovative, yet reasonably safe products," wrote the lawyers on the CBIA's behalf. "Any deviation from generally accepted standards in this regard creates unquantifiable arbitrariness that can impede innovation and product development, or simply put manufacturers in the unfair position of being insurers of any injury caused by their products."

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